The executor or administrator is responsible for administering the estate for as long as it takes for them to tidy up the deceased’s financial affairs and distribute the estate property to those they have left behind.
When someone passes away, the property they owned passes to their deceased estate and is managed by an executor if one is named in a will, or a Court-appointed administrator if there is no will.
What property will become part of the deceased estate?
A person’s deceased estate includes all the property they owned, such as their possessions, bank accounts, investments, and real estate. It does not include property which the deceased owned jointly with another person or the property owned by a trust of which they were a trustee.
What are the responsibilities of an executor or administrator?
Once an executor or administrator has the legal right to act on behalf of the estate, they are required to:
- Manage and protect estate assets. This may include selling assets, such as property; ensuring insurances are in place; continuing any practical aspects (such as paying ongoing bills); and transferring funds into trust accounts. Detailed records of all transactions made on behalf of the estate must be kept. These activities usually need to continue for between six and twelve months.
- Settle the deceased’s liabilities.
- Consider and respond to any additional claims made on the estate, and potentially litigate to uphold the terms of the will.
- Finalise the tax obligations of the deceased and the tax liabilities of the estate that accrue while it is under administration.
- Distribute the assets to the beneficiaries in the manner described in the will, or as required by the Administration Act 1969 if there is no will. This includes preparing distribution statements for the beneficiaries to accept and transferring funds or the physical and legal ownership of non-cash assets.
What is a testamentary trust?
Wills can include the creation of a testamentary trust to own assets on behalf of beneficiaries. These trusts are often used when the beneficiaries include dependent children and can exist many years after the final distribution from the estate. During the time the trusts are in existence, they require trustees to conduct the trust’s affairs, such as to make payments in connection with the care of the trust beneficiaries; hold periodic meetings to consider and reaffirm the objectives of the trust; and prepare tax returns and payments.
Our trust administrators at Wakefields can take care of all the ongoing activities required to ensure testamentary trusts continue to operate into the future, for as long as required, to look after the interests of vulnerable beneficiaries.
If you are the named executor in a will or you wish to be appointed as the administrator, you can choose to carry out the estate administration yourself, but we strongly recommend you seek expert help. It’s important that all the responsibilities are performed correctly and efficiently. This is not only to ensure the wishes of the deceased are honoured, but also to meet all the legal requirements; prudently manage the assets; and ensure the personal relationships of beneficiaries and others involved are handled in an impartial, caring manner to minimise the risk of disagreements.
Our Estate Administration team are experienced professionals you can rely on. Contact us for help with any particular aspects of estate administration, or, if you prefer, to handle all the responsibilities for ensuring the deceased’s wishes are carried out, and all the legal obligations are met.
We tailor our services depending on your preferences and the size and complexity of the estate. We base our fees on our competitive fees structure, and the time our Estate Administration team spend assisting you.
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Applying for formal administration
Grants of Probate and Letters of Administration
Generally, if the value of any of the assets in a deceased estate exceeds $15,000, the executor will need to apply to the High Court for ‘formal administration’. This is called a ‘Grant of Probate’, and it gives the executor the legal authority to act on behalf of the deceased estate. Similarly, if there is no will, someone, usually a family member, will need to apply to the High Court for ‘Letters of Administration’ for the same purpose.
Applying to the High Court for a grant of probate, or letters of administration, is specialised work and is usually performed by an estates lawyer. This is because applications have to be in the format required by the High Court; and contain all the necessary supporting documentation and information, including signed affidavits from executors or those seeking to be the administrator.
We recommend you seek expert assistance. This will ensure the application process runs smoothly, so that the High Court can grant the formal administration as early as possible. This is important, as the process will take between four to six weeks assuming the application has been filed correctly, but even longer if the Court has not received all the correct documentation or the application did not comply, in any other way, with the relevant High Court Rules. During this period, the necessary estate administration activities can not commence.
Our experienced Estate Administration team can apply, on your behalf, to the High Court for grants of probate or letters of administration.
Generally, if no asset of the estate has a value of more than $15,000 and the estate does not have any interest in land, no grant of formal administration is required. In which case, the executor (or, if there is no will, the deceased’s family) can immediately commence administering the estate and distribute the assets. As with formal administration, the terms of the will, or (if there is no will) the requirements of the Administration Act 1969, still need to be followed. We can assist with the valuation and advise on whether formal administration is required.